The Constitution of the Republic of South Africa and the Labour Relations Act give
employees the right to strike. This right is, however, not unlimited.
By reason of the satisfaction of statutory requirements, strikes are classified as
protected or unprotected. Protected strikers may be dismissed for misconduct
during the strike or by reason of the operational requirements of the employer.
The employer's operational requirements will justify dismissal when his/her level of
tolerance is reached. This will be the case when the employer's business is on the
brink of extinction or about to suffer irreparable harm. All the relevant facts must
however be taken into account. Currently there is no definite test in this regard
and it is proposed that fairness, taking into account all the relevant facts and
circumstances, be the overriding consideration. A specific test for the
determination of the employer's level of tolerance must be rejected.

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